Baker Law Cited in Non-Entrapment Lawsuit

The parents of a drowned toddler have brought VGB compliance into their lawsuit against a waterpark, despite the fact that the death was not a result of entrapment.

On Aug. 2, 2009, 3-year-old Hassan S. Itani was playing with his
brother in the kiddie pool at Kalahari Waterpark Resort in
Sandusky, Ohio. According to the claim, he walked out of view of
his mother, exited the pool and went into an adjacent shallow
lagoon.

The lawsuit states that Hassan’s mother began looking for
the child immediately, then quickly asked park personnel for help.
He was found floating face down in the approximately 3-foot-deep
lagoon. A guest of the waterpark attempted CPR, but the boy
died.

The child’s family filed suit in November 2009 against
Kalahari and its owner, LMN Kondominium Development, claiming
inadequate staffing and safety precautions.

Last month, the Itanis amended the lawsuit, stating that the
resort did not meet its obligations under the Virginia Graeme Baker Pool and Spa Safety Act.
VGB requires all commercial pools and spas to be outfitted with
approved drain covers and either multiple drains, unblockable
drains or a backup device such as an SVRS on single-drain systems.
The deadline for compliance was Dec. 19, 2008.

This is the second lawsuit where VGB has been cited under what
some consider questionable circumstances. The first occurred in
Pittsburgh, where the wife of a drowning victim alleged that her
husband was entrapped, though officials found no evidence
supporting her allegation.

But unlike that case, there is no claim of entrapment at
Kalahari. Instead, the suit states that if the out-of-compliance
pool had been closed, as the law dictates, then Hassan would be
alive today.

“The business decision by [the defendants] to keep the pool
open and charge the public a fee for profit in violation of the
civil and criminal statues renders them liable for the damages
sustained to [the plaintiffs],” the complaint reads.

Furthermore, the suit cites sections of VGB and the Consumer
Product Safety Act that allow victims to sue if a person or entity
willfully violates consumer product safety laws.

The Itanis have requested an injunction to close the Kalahari
pool until the renovations are made. “Plaintiff is concerned
that the outdoor pools, including the Shallow Lagoon, will be
reopened for the summer of 2010, while Defendants continue to
violate the Safety Act and the Consumer Product Safety Act,”
the complaint stated.

But industry experts question whether the VGB claims will have
traction. “To me, trying to allege a VGB violation even
though it has nothing to do with this injury is quite a
stretch,” said Steven Getzoff, an attorney with Lester Schwab
Katz & Dwyer, LLP, in New York and legal counsel for the
Association of Pool & Spa Professionals. “I think most
courts would be inclined … to dismiss a claim like that
because it’s completely irrelevant.”

Furthermore, he asserted that if the pool had been brought to
code before the drowning, the tragedy still would have
occurred.

Regardless, some believe the industry will see VGB brought up in
more lawsuits that don’t involve an entrapment.

“Facilities that are not compliant with VGB are under
greater risk in any litigation,” said Thomas Lachocki, CEO of
the National Swimming Pool Foundation in Colorado Springs, Colo.
“When plaintiffs can show that a facility is not living up to
federal law on one safety area, it’s more easy to imply that
they may not be living up to standards of care in other
areas.”